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Tuesday, 15 September 2009

Commission tells IP community, "Forget better legal protection, it's not going to happen"

Via the IPKat's 1709 Blog friend Hugo Cox comes this link to Press Release IP/09/1313 concerning the European Commission's latest take on IP enforcement, "Intellectual Property Rights: Commission comes forward with practical, non-legislative measures to combat counterfeiting and piracy".  


Right: Is the Commission's position a radical innovation or just a polite way of saying "I surrender"?

If they are practical, presumably they are intended to achieve something -- and they are non-legislative there's presumably no need to go through all the hoops imposed by judicial scrutiny. So what are these measures? The IPKat clears his throat and reads:
"The European Commission today [14 September] adopted a Communication on enhancing the enforcement of intellectual property rights in the internal market. The Communication sets out a series of practical initiatives to respond to the dramatic and damaging effect that counterfeiting and piracy is having on EU economies and on society in general [How curious that 'economies' and 'society' are mentioned, but not 'rights owners' -- it's almost as though IP is a public resource, like water or fuel, rather than private property]. The Commission is proposing to complement the existing legal framework by more focused enforcement through greater collaboration between the private sector, national authorities and consumers, throughout the internal market.

Internal Market and Services Commissioner Charlie McCreevy said: " The EU is home to some of most successful businesses in the world [and to some of the least successful. So what?] who consider intellectual property rights to be amongst their most precious commercial possessions. Intellectual property rights encourage innovation and creativity which results in an essential cycle of business development, knowledge, further innovation and employment [Anotherstandard recitation]. They also offer consumers a reassurance that the products and services they buy are legitimate, reliable and above all safe. Unfortunately, there are always those who will seek to undermine honest intentions. We need to stop this dangerous trend not by more legislation, but by mobilising stronger collaboration helping us to fight back [Is it really "Not A but B?"  Is there no scope for "Both A and B"? The former is taken as axiomatic]".

Intellectual property rights are a cornerstone of a creative, competitive, wealth-generating, knowledge-based society. Counterfeiting and piracy undermines this position, placing creators, business, jobs and consumers at ever-growing risk through fake products and services that pose a real threat to health and safety [Is the IPKat imagining things, or have the same sentiments just been expressed in the previous paragraph].

The Commission aims to ensure a highly efficient, proportionate and predictable system of enforcement of intellectual property rights, both within and outside the internal market. [Yes, but ...] The current legal framework provides the tools to enforce intellectual property rights in a fair, effective and proportionate way [This rather implies that the current law is fine. No Criminal Enforcement Directive after all, the Kat presumes. And the Commission must be so very, very pleased with the outcome of the ECJ's Class International and Diesel/Montex case law, which guarantees the safe passage of fake and dangerous products over and across the territory of the EU, free from the meddlesome interference of those busybody IP rights owners, so tactlessl disenfranchised in the first paragraph of this missive].

Complementing legislation, the actions in this Communication aim to:

* support enforcement through a new EU Observatory on counterfeiting and piracy which will bring together national representatives, private sector experts and consumers to work to collect data on and analyse the scope and scale of the problem, share information, promote best practices and strategies, raise awareness and propose solutions to key problems [What will this achieve which hasn't been achieved by the past two decades of watching, talking, lobbying, fact-finding, policy-shaping etc between organisations representing rights owners, enforcement agencies etc? Other than to spend more time and resources flying round Europe and eating meals at the consumers' expense, that is];
* foster administrative cooperation across Europe by developing coordination to ensure that more effective exchanges of information and mutual assistance can take place. As a result, Member States are called to designate National Coordinators. An electronic network for information sharing will also need to be available [So long as the Commission doesn't regard information-sharing between victims of infringement as anti-competitive and so long as we can cope with the red-tape of data protection].
* build coalitions between stakeholders to overcome conflicts and disputes, by developing collaborative voluntary arrangements that focus on concrete problems, such as the sale of counterfeit goods over the internet [This assumes that these unspecified voluntary arrangements between stakeholders will be effective against counterfeiters, who will presumably cooperate with them], and are capable to adapt quickly to changing markets and technology. Such agreements can also be more easily extended beyond the EU and become the foundation for best practice at global level.
The Communication results from the Commission's IPR Strategy for Europe adopted last year and builds upon the recent Council Resolution on a comprehensive European anti-counterfeiting and anti-piracy plan".
The IPKat feels singularly depressed at the thought that this is the best we can come up with.  Merpel goes one step further. Imagine, she says, that the reader of this statement is not a legitimate stakeholder but a trader in counterfeit and pirate products: would such a person not feel assured and comforted by this assortment of pious and waffly sentiments?

7 comments:

Mark Anderson said...

The plan to introduce criminal sanctions for patent infringement (an ill-considered consequence of a scattergun approach to tackling copyright piracy) was very undesirable, and it was doubtful whether they had jurisdiction to do it. Perhaps they have now realised this. I am less depressed than alarmed at the way the Commission seems to have lurched from an overreaction to an under-reaction to copyright piracy issues.

Anonymous said...

I am so fed up of hearing about the "knowledge-based society/economy". As Nanni Moretti once said (before thumping a careless employer of meaningless platitudes in the face) "Words are important", so think when using them rather than reciting the Zeitgeist's mantras without considering what they actually mean.

Jeremy said...

Mark: criminal sanctions, for patents or any other IP infringements, don't have to be ill thought-out and based on a scattergun approach. One might have hoped that, after staring at the consequences of IP piracy for so long, the Commission might just be able to distinguish the activities of pirates and counterfeiters from those of legitimate traders.

André Rebentisch said...

It may be difficult for you to understand EU documents but you have to focus on the substance. The core is "support enforcement through a new EU Observatory on counterfeiting and piracy", a long -standing demand to institutionalise interests.

The criminal enforcement directive is zombie law in a Council parking slot and beyond the scope of the document. The Commission did IPRED2 italo-style, they ignored all the technicalities in the preparation. It is time for the Council to pull it off the agenda. Member states are not eager to permit EU harmonisation of criminal law, nor did the Treaty provide sufficient grounds. The EU deserves a more professional legislature.

Anonymous said...

Items of IP are treated as private property, but IP qua institution can perfectly well be regarded as a public resource. And since rights holders presumably figure in 'economies' and 'society', perhaps the Commission merely wished to avoid any appearance of triple-counting.

goldenrail said...

" - it's almost as though IP is a public resource, like water or fuel, rather than private property." Hmmm... pretty much the stance the copyleft side generally takes. I wonder how the policy debates will change if both sides argue about (c)'d works as public resources.

Gena777 said...

I suspect McCreevy would counter that "spend[ing] more time and resources flying round Europe and eating meals at the consumers' expense" is somehow an IP right that will "encourage innovation and creativity which results in an essential cycle of business development, knowledge, further innovation and employment." :)
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